2025 (4) TMI 1421 - AT - Income Tax

TDS u/s 194H - discounts allowed to its distributors on sale of starter kits and recharge vouchers (RCVs) - HELD THAT - As relying on Tata Teleservices Limited 2018 (5) TMI 703 - ITAT DELHI and Bharti Cellular Ltd. 2024 (3) TMI 41 - SUPREME COURT we hold that no TDS u/s 194H is deductible in case of discounts allowed to the distributors on sale of starter Kits and recharge vouchers. Assessee in default u/s 201 - non-deduction of tax at source under the provisions of section 194J on inter connect usage charges paid by the assessee to the other telecom operators - HELD THAT - As relying on M/S TATA Teleservices Ltd. 2018 (5) TMI 703 - ITAT DELHI we hold that no TDS u/s 194J is deductible in case of roaming charges paid. Grounds raised by the assessee are allowed.

Summary

Issues Presented and Considered

The core legal questions considered by the Tribunal in this appeal relate primarily to the applicability and interpretation of provisions under the Income Tax Act, 1961, specifically sections 194H, 194J, 201, 201(1A), and 271(1)(c). The principal issues were:

• Whether the assessment order passed under section 201/201(1A) is bad in law and void ab initio.
• Whether the appellant was liable to deduct tax at source (TDS) under section 194H on discounts allowed to distributors on sale of starter kits and recharge vouchers (RCVs).
• Whether the appellant was liable to deduct TDS under section 194J on interconnect usage charges (IUC) paid to other telecom operators.
• Whether the appellant was an 'assessee in default' for non-deduction of TDS under sections 194H and 194J.
• Whether the appellant was entitled to a reasonable opportunity of hearing and whether the principles of natural justice were violated in passing the order under section 201/201(1A).
• Whether a demand under section 201(1) could be raised against the appellant, or only interest under section 201(1A) was leviable.
• Whether penalty proceedings under section 271(1)(c) were rightly initiated.
• Whether the appellant was liable to pay interest under section 201(1A) of the Act.

Issue-wise Detailed Analysis

1. Validity of the Assessment Order under Section 201/201(1A)

The appellant contended that the assessment order was bad in law and void ab initio, and that the CIT(A) erred in rejecting this ground summarily. The appellant relied on the absence of any finding by the Assessing Officer (AO) regarding failure of deductees to pay tax directly, which they argued was a jurisdictional pre-requisite under section 201(1). The Tribunal noted that the CIT(A) upheld the AO's order treating the appellant as an 'assessee in default' under section 201(1) read with section 191. However, the Tribunal did not find merit in the appellant's submissions on this ground and proceeded to examine substantive issues relating to TDS obligations.

2. Applicability of Section 194H on Discounts Allowed to Distributors

This issue centered on whether the discounts allowed by the appellant to its distributors on sale of starter kits and recharge vouchers attracted TDS under section 194H (commission or brokerage). The AO and CIT(A) held that such discounts were commission liable to TDS. The appellant challenged this on multiple grounds:

• Section 194H applies only on payment or credit to the payee's account, and the discount was neither a payment nor credit.
• The discount did not constitute income chargeable to tax in the hands of the distributors.
• The relationship between the appellant and distributors was principal-to-principal, not agency, hence no commission was involved.
• Precedents from Karnataka and Rajasthan High Courts (including Bharti Airtel Ltd. and Hindustan Coco-Cola Beverages) supported the principal-to-principal model and held that discounts on sale of SIM cards and recharge vouchers were not commission attracting TDS under section 194H.
• Sales Tax/VAT authorities had accepted the transactions as valid sales, which should not be contradicted by income tax authorities.
• Discounts allowed on bulk sales did not equate to income for distributors since distributors earned income from resale.
• The Supreme Court decision in CIT vs. Ahmedabad Stamp Vendors Association was cited to emphasize that P2P relations exclude section 194H applicability.
• The appellant had deducted TDS under section 194H on postpaid SIM card activation payments, distinguishing prepaid distribution from postpaid service models.

The Tribunal extensively relied on the Supreme Court decision in Bharti Cellular Ltd. vs. ACIT, which clarified that the term 'agent' under section 194H is restricted to those who can affect the legal position of the principal by contract or disposition of property. Distributors who purchase goods on their own account and sell independently are independent contractors, not agents. Therefore, section 194H does not apply to discounts allowed to such distributors.

The Tribunal also referenced the Delhi High Court's ruling in Tata Teleservices Ltd. which affirmed the non-applicability of section 194H in such distributor arrangements. Following these authoritative pronouncements, the Tribunal held that no TDS under section 194H was deductible on discounts allowed to distributors on sale of starter kits and recharge vouchers, thus deciding this ground in favor of the appellant.

3. Applicability of Section 194J on Interconnect Usage Charges (IUC)

The AO and CIT(A) held that the appellant was liable to deduct TDS under section 194J on roaming charges (IUC) paid to other telecom operators, treating these as fees for technical services. The appellant contended that:

• The roaming process is fully automated and does not involve human intervention.
• No managerial or consultancy services were involved.
• No use of equipment by the appellant of the other operator occurred to constitute technical services.
• The payments were for use of a standard facility, not technical services.

The Tribunal examined relevant judicial precedents, including the Supreme Court's decision in Commissioner of Income Tax v. Bharti Cellular Ltd., which had remanded the issue for expert examination on whether human intervention was involved in roaming services. The Madras High Court in Commissioner of Income Tax v. Dishnet Wireless Ltd. held that human intervention by skilled personnel was integral to roaming services, thus attracting section 194J.

However, the Delhi High Court in Commissioner of Income Tax (TDS)-2 vs Tata Teleservices Ltd. and the Karnataka High Court in CIT vs Vodafone South Ltd. held that interconnect usage charges do not involve human intervention and thus do not constitute fees for technical services under section 194J. The CBDT had consciously decided not to challenge the Karnataka High Court's ruling, as per a letter recorded in the proceedings, creating binding precedent for the revenue.

The Tribunal emphasized that the appellant-revenue cannot take contradictory stands on the same legal issue in different cases without just cause, citing Supreme Court decisions in Birla Corporation Ltd. and Commissioner of Central Excise, Navi Mumbai vs. Amar Bitumen & Allied Products Pvt. Ltd.

Given the binding precedents and the factual finding that roaming services between operators are automated and do not involve human intervention, the Tribunal held that no TDS under section 194J was deductible on interconnect usage charges paid by the appellant. Accordingly, the appellant was not an assessee in default for non-deduction of TDS under section 194J.

4. Interest and Penalty under Sections 201(1A) and 271(1)(c)

The appellant challenged the levy of interest under section 201(1A) and the initiation of penalty proceedings under section 271(1)(c). The Tribunal held that since no TDS liability arose under sections 194H and 194J, the consequential interest levied under section 201(1A) on such amounts was not sustainable and was deleted in respect of roaming charges. However, interest on discounts/commission related to prepaid SIM cards and talk time was remitted back to the AO for fresh consideration in light of relevant High Court judgments.

Regarding penalty, the Tribunal found that the AO erred in initiating penalty proceedings under section 271(1)(c) given the absence of any default in deducting TDS, and the penalty confirmation by CIT(A) was set aside.

5. Principles of Natural Justice and Opportunity of Hearing

The appellant contended that the AO passed the order without providing a copy of an independent expert opinion obtained by the department on roaming services and without allowing cross-examination, violating principles of natural justice. The CIT(A) rejected this contention. The Tribunal did not find sufficient grounds to interfere on this issue, noting that the substantive legal questions had been decided on authoritative precedents and factual findings.

6. Demand under Section 201(1) versus Interest under Section 201(1A)

The appellant argued that no demand under section 201(1) could be raised against the payer in cases of non-deduction of TDS; only interest under section 201(1A) could be levied. Further, the appellant contended that taxes had been paid by the payees, and raising demand on the payer would result in double taxation, violating taxation principles. The Tribunal noted the Mumbai Tribunal's directive that the AO verify tax payment by payees using PAN details furnished by the appellant. The Tribunal agreed with the appellant's submissions and held that demand under section 201(1) was not sustainable in the circumstances.

7. Treatment of Competing Arguments

The Tribunal carefully considered the submissions of both parties and the extensive judicial precedents cited. The appellant relied heavily on Supreme Court and High Court decisions favoring the principal-to-principal relationship and non-applicability of TDS on discounts and interconnect charges. The revenue relied on earlier Tribunal and High Court decisions holding that such payments attracted TDS under sections 194H and 194J. The Tribunal gave precedence to the latest and binding decisions of the Supreme Court and jurisdictional High Courts, as well as the CBDT's acceptance of certain High Court rulings, thereby rejecting the revenue's contrary stand.

Conclusions

• The assessment order under section 201/201(1A) was not found to be void ab initio, but substantive grounds justified interference.
• No TDS was deductible under section 194H on discounts allowed to distributors on sale of starter kits and recharge vouchers, as the distributor relationship was principal-to-principal, not agency.
• No TDS was deductible under section 194J on interconnect usage charges paid to other telecom operators, as roaming services were automated and did not involve human intervention qualifying as technical services.
• The appellant was not an assessee in default under sections 194H and 194J for non-deduction of TDS on the above payments.
• Interest under section 201(1A) was deleted in respect of roaming charges and remitted for reconsideration on discounts/commission related to prepaid services.
• Penalty proceedings under section 271(1)(c) were not justified and were set aside.
• The demand under section 201(1) was not sustainable where payees had paid taxes, to avoid double taxation.
• The appellant was not denied principles of natural justice in a manner warranting interference.

Significant Holdings

The Tribunal preserved and applied the following crucial legal reasoning verbatim from the Supreme Court in Bharti Cellular Ltd.:

"Thus, the term 'agent' denotes a relationship that is very different from that existing between a master and his servant, or between a principal and principal, or between an employer and his independent contractor. Although servants and independent contractors are parties to relationships in which one person acts for another, and thereby possesses the capacity to involve them in liability, yet the nature of the relationship and the kind of acts in question are sufficiently different to justify the exclusion of servants and independent contractors from the law relating to agency. In other words, the term 'agent' should be restricted to one who has the power of affecting the legal position of his principal by the making of contracts, or the disposition of the principal's property; viz. an independent contractor who may, incidentally, also affect the legal position of his principal in other ways. This can be ascertained by referring to and examining the indicia mentioned in clauses (a) to (d) in paragraph 8 of this judgment. It is in the restricted sense in which the term agent is used in Explanation (i) to Section 194-H of the Act."

Further, the Tribunal followed the Delhi High Court's exposition that:

"The distributor buys goods on his account and sells them in his territory. The profit made is the margin of difference between the purchase price and the sale price. The reason is, that the distributor in such cases is an independent contractor. Unlike an agent, he does not act as a communicator or creator of a relationship between the principal and a third party."

On the issue of interconnect usage charges, the Tribunal relied on the Karnataka High Court's holding:

"For installation/setting up/repairing/servicing/maintenance capacity augmentation are require human intervention but after completing this process mere interconnection between the operators is automatic and does not require any human intervention. The term Inter Connecting User Charges (IUC) also signifies charges for connecting two entities... We hold that these charges are not fees for rendering any technical services as envisaged in Section 194J of the Act."

These core principles established that TDS under section 194H does not apply on discounts to distributors who are independent contractors and that TDS under section 194J does not apply on automated interconnect usage charges devoid of human intervention.